by KPMLAW | Jan 26, 2019 | KPMBlog, News, Profiles, Uncategorized
By Brian A. Cafritz Removing a case to Federal Court is often one of the first important strategic moves a defendant can make in litigating a lawsuit. Knowing the inherent advantages that typically come with Federal Court, Plaintiffs will often plead the case in a way that precludes Federal Removal. Sometimes, the rush to Federal Court can backfire, and in the recent case of Scott Carmine v. Glen Poffenbarger, et al., Civil Action No. 1:18-cv-1288, Judge Anthony Trenga in Alexandria Division of the Eastern District of Virginia sanctioned the defendant for attempting to remove the lawsuit when such a move was not proper. Carmine was a medical products liability case where the Plaintiff alleged permanent and disabling injuries from a bone graft procedure. Plaintiff sued his doctor (Dr. Poffenbarger), 5 product manufacturers whose components were involved in the surgery (the Medtronic Defendants), and the Hospital and physicians group. Of the defendants, only the hospital and physicians group were Virginia citizens. On the day before the deposition of Plaintiff’s expert, the expert reconsidered, and he testified that Dr. Poffenbarger did not breach the applicable standard of care. Dr. Poffenbarger was scheduled to be deposed one week after the expert, but just days before that deposition, the Medtronic Defendants removed the case to Federal Court. The removal created extreme disruption to the state court’s scheduling and docket. Specifically, the removal caused Dr. Poffenbarger’s deposition to be canceled, the defendant’s expert designation to pass, and the trial date scheduled for the next month to be missed. The Medtronic Defendants contended that the collapse of Plaintiff’s experts would require the dismissal of Dr....
by KPMLAW | Jan 26, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. “[C]ommon-sense is opposed to making one man pay for another man’s wrong.” ~Oliver Wendell Holmes, Jr., Agency, 5 Harv. L. Rev. 1, 14 (1891). Sadly, this is not the law in Virginia. If you own (or insure) a business that requires your employees to do some form of traveling, whether in a company vehicle or their own, it is important to be aware of your potential liability and take proactive measures to reduce risk. Whether you are a traditional freight carrier, a home services company, a residential or commercial cleaning company, a medical transporter, a provider of roadside assistance services, or even a food truck owner—it is necessary to prepare a plan for handling liability arising out of motor vehicle accidents involving employees. Plaintiffs will sue you, the entity-employer, under a theory of “respondeat superior,” which is a form of vicarious liability that holds an employer responsible for the wrongful acts of its employees, if the wrongful act was done in the course and scope of his or her employment. The question, then, is whether your driver was in the scope of his employment when involved in a motor vehicle accident (or other allegedly wrongful conduct). Obviously, the answer to that question depends on the driver’s itinerary. See Bryant v. Bare, 192 Va. 238, 245 (1951) (“In any case, it has been said to be clearly impossible to formulate a general rule governing all cases…”). The Virginia Supreme Court called it a “vexatious and perplexing” task to determine whether an employer should be held liable based on his employee’s...
by KPMLAW | Jan 26, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Ben Woody, Esq. Edited by Bill Pfund, Esq. The capsizing of a vessel operated by a police officer has highlighted a stark contrast between the application of sovereign immunity in state and federal courts in Virginia. The City of Norfolk contracted with Willard Marine, Inc., to perform certain repairs to the City’s SAFE Boat. When Willard Marine returned the repaired vessel to the City, a Norfolk police officer and two other City employees accepted delivery on its behalf. The officer, who was otherwise unqualified to navigate the vessel, conducted a sea trial with two Willard Marine employees, Glover and Pridemore, aboard. The officer perceived steering and handling issues with the SAFE Boat and, without warning the Willard Marine employees, pushed the vehicle to high speed and steered hard to starboard, causing the vessel to capsize and injuring Glover and Pridemore. The employees sued under a variety of theories in parallel state and federal litigation. In the state case, the plaintiffs sued under theories of common law negligence and gross negligence. In the federal case, the City moved to dismiss the claims on the basis that, among other reasons, sovereign immunity barred the plaintiffs from recovery. Glover v. Hryniewich, 2018 U.S. Dist. LEXIS 64920, at *8 (E.D. Va. Apr. 16, 2018). The Eastern District of Virginia found, however, that sovereign immunity was not available to the City for two reason: first, the sea trial was not a government function; and second, the City was not an arm of the state. Id. at *13, 15. The Court noted that sovereign immunity protected municipal shipowners in in rem proceedings (against...
by KPMLAW | Jan 22, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Porter Peery, Esq. Edited by Bill Pfund, Esq. The improvement in artificial intelligence (AI) over the last few years has impacted several industries including insurance. In a survey by Accenture “a full 75% of 550 insurance executives said they believe that AI will either significantly alter or completely transform the overall insurance industry in the next three years.” Machine learning algorithms are already playing a key role in product design, sales, services, fraud detection, risk evaluation and claims resolution. In another Accenture survey, the two keys to a satisfactory customer claims experience were speed of settlement and transparency of process. AI can improve and streamline the claims process through automated data entry, compliance tracking, fraud screening and even analysis and predictive modeling. By removing what used to be manual steps, an adjuster will be freed up to utilize their experience where it can count the most. Increasing the efficiency of claims processing and reducing loss adjustment expenses will reduce overall costs and help make the carrier’s premiums stay more competitive. (1) Despite these benefits, the use of AI presents hidden dangers for insurance companies, particularly in such areas as regulatory compliance, law and privacy. There is little apparent on the surface as to just how AI makes conclusions or solves problems while performing tasks. The concerns are especially relevant for the insurance industry which needs to comply with a number of industry and government regulations. Algorithms do malfunction and although these mistakes may be different from those typically made by humans, there will likely be legal ramifications. Who will be held responsible if a machine makes an...
by KPMLAW | Jan 22, 2019 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Back in September, KPM’s Joe Smith updated you about the Commission’s recent decision of Norris v. ETEC Mechanical Corporation, JCN:VA00001317384 (June 25, 2018). Norris involved a claimant who sustained serious injuries in a car accident after he fell asleep at the wheel. By Norris’s own admission, he “dozed off.” He said he’d done it before and added that “I guess this time I didn’t wake up.” The Commission denied benefits, holding that the accident did not “arise out of” his employment. Specifically, the Commission found that Norris had failed to prove a “causal connection between [his] employment and his untimely slumber…” Since Joe’s update, the Court of Appeals reviewed the Commission’s decision in Norris. In the published decision of Norris v. ETEC Mechanical Corporation, Record No. 1054-18-2 (Dec. 28, 2018), the Court agreed with the Commission that Norris could not recover under the Workers’ Compensation Act. The Court’s Norris opinion begins by explaining the difference between an injury occurring “in the course of” employment and “arising out of” employment. Norris, who was driving a company vehicle at the time of his crash, was clearly “in the course of” his employment. However, Norris still needed to prove a “’critical link’ or causal connection between the conditions of his work and falling asleep behind the wheel.” The Court held he failed to do this. The reason Norris lost was because he “denied knowing what caused him to fall asleep.” Although he “testified that he dozed off because he was tired,” he “never related his drowsiness to his employment.” He also admitted...
